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The Right to Abandon 10_STRAHILEVITZ_FINAL.DOCX (DO NOT DELETE) 2/1/2010 6:34 PM ARTICLE THE RIGHT TO ABANDON † LIOR JACOB STRAHILEVITZ The common law prohibits the abandonment of real property. Perhaps it is surprising, therefore, that the following are true: (1) the common law generally permits the abandonment of chattel property, (2) the common law promotes the transfer of real property via adverse possession, and (3) the civil law is widely believed to permit the abandonment of real property. Because the literature on abandonment is disappointingly sparse, these three peculiarities have escaped sustained scholarly analysis and criticism. This Article aims to provide a com- prehensive analysis of the law of abandonment. After engaging in such an analysis, this Article finds that the common law’s flat prohibition on the aban- donment of corporeal interests in real property is misguided. Legal rules prohi- biting abandonment ought to be replaced with a more permissive regime in which both the value of the underlying resource and the steps that the abandon- ing owner takes to ensure that would-be claimants are alerted to the resource’s availability are what matters. Furthermore, the law of abandonment ought to be harmonized for real property and chattels. Finally, this Article criticizes the † Professor of Law and Walter Mander Teaching Scholar, University of Chicago Law School. The author thanks Sandra Lloyd and James Tierney for providing helpful family history concerning the Pocono Springs case; Eduardo Peñalver for his generous collegiality and insight as we each tried to make headway on the issue of abandon- ment; Adam Badawi, Douglas Baird, Shyam Balganesh, Eric Biber, Anu Bradford, Anupam Chander, Rosalind Dixon, Joel Dobris, Bob Ellickson, Chris Elmendorf, Lee Fennell, Tom Ginsburg, Bernard Harcourt, Paul Heald, Dick Helmholz, Alison La- Croix, Brian Leiter, Saul Levmore, Anup Malani, Jeremy Meisel, Adam Muchmore, Adam Samaha, Henry Smith, Madhavi Sunder, and Josh Tate; workshop participants at the University of Chicago, the University of California Davis, Washington University in St. Louis, and the University of Colorado’s Property Works in Progress Conference for helpful comments and suggestions; Ben Foster and Katie Heinrichs for energetic re- search assistance; and the Morton C. Seeley Fund and the John M. Olin Foundation for research support. (355) 10_STRAHILEVITZ_FINAL.DOCX (DO NOT DELETE) 2/1/2010 6:34 PM 356 University of Pennsylvania Law Review [Vol. 158: 355 law’s preference for adverse possession over abandonment as a means of trans- ferring title in cases in which these mechanisms might function as substitutes. In the course of analyzing the law of abandonment and offering a qualified defense of the practice, this Article provides the first workable definition of re- source abandonment, suggests that the abandonment of positive-value real and intellectual property is surprisingly widespread by providing multiple examples, and analyzes the costs and benefits associated with abandonment. This Article explores at some length the factors that will determine whether an owner opts for abandonment or other means for extinguishing his rights to a resource, as well as the considerations that should drive the law’s receptivity to these efforts. The latter considerations include the decision, transaction, decay, confusion, sustai- nability, and lawless-race costs associated with abandonment. In addition, readers will be exposed to pertinent tidbits concerning the social norms of geo- caching, the anthropology of “making it rain,” the unfortunate decline of mu- nicipal bulky-trash pickup, Mississippi’s misguided livestock laws, and the du- bious parenting choices of Jean-Jacques Rousseau. INTRODUCTION ......................................................................................356 I. UNDERSTANDING ABANDONMENT .................................................360 A. Taxonomy of Abandoned Properties .................................... 362 B. Costs of Abandonment ...................................................... 372 C. Abandonment’s Comparative Appeal .................................. 375 II. THE LAW OF ABANDONMENT .........................................................390 A. Permissive Regimes ........................................................... 390 B. Escheat ........................................................................... 394 C. Prohibition ...................................................................... 398 D. Licensing ........................................................................ 402 E. Promoting Abandonment? ................................................. 404 III. A PROPOSAL FOR RATIONALIZING THE LAW OF ABANDONMENT ....405 A. Negative-Market-Value Property .......................................... 405 B. Positive-Market-Value Property ........................................... 407 C. Is Land Different? ............................................................ 412 CONCLUSION ..........................................................................................419 INTRODUCTION On an ordinary Wednesday in August of 2008, there were sixty- one separate listings in the “Free Stuff” section of Chicago’s Craigslist 10_STRAHILEVITZ_FINAL.DOCX (DO NOT DELETE) 2/1/2010 6:34 PM 2010] The Right to Abandon 357 directory.1 The belongings made freely available ranged from highly desirable items (an entertainment center in great condition, a work- ing “Gilbranson [sic] organ,” televisions, and microwave ovens) to those that might be useful to a niche population (a Hewlett-Packard inkjet cartridge, VHS tapes of the motion pictures Free Willy and Free Willy 2, and wooden doors from a colonial house built in 1938) to the nearly worthless (a broken refrigerator, one cubic yard of dirt from a landscaping project, and “Tons of River Rocks”). All were offered by their owners on a first-come, first-served basis. In most cases, the items were kept inside the owner’s home, and a claimant would need to make arrangements with the owner to haul off the property. But the owners were not picky—the first claimant with the ability to do so could take the advertised property home. In a few cases, such as that of the broken refrigerator, the item had been left by the owner in an alley or another easily accessible place, and the Craigslist advertise- ment described its location.2 Craigslist is hardly alone in pairing would-be abandoners with po- tential claimants. Another national organization, the Freecycle Net- work, offers a similar service with high levels of participation, and BookCrossing is a global service that facilitates the abandonment and finding of books. In recent years, communities of “freegans” have sprouted up in urban areas around the world, eating, cleaning, and wearing resources that other people have discarded.3 As a testament to the prevalence of abandonment and the value of the resources abandoned, it appears that some of these freegans are able to live es- sentially pleasant, middle-class lives.4 As the American economy has slid into a significant recession, states like Florida and South Carolina are dealing with hundreds of abandoned boats that are clogging local waterways, left by owners evidently unable to find buyers and unwilling to pay slip fees.5 Moreover, it is not only personal property that is widely abandoned. In rural, sparsely populated areas of Kansas, Ne- 1 Chicago Free Stuff Classifieds—Craigslist, http://chicago.craigslist.org/zip/ (Aug. 14, 2008) (on file with author). 2 See Posting to Chicago Free Stuff Classifieds—Craigslist, http://chicago. craigslist.org/chc/zip/795812089.html (Aug. 13, 2008) (on file with author) (stating that a broken refrigerator was available in the alley at “51st & Mobile”). 3 See Steven Kurutz, Not Buying It, N.Y. TIMES, June 21, 2007, at F1 (explaining the culture of “freegans,” who live off of consumer waste to minimize their support of cor- porations and their environmental impact). 4 See id. 5 David Streitfeld, Too Costly to Keep, Boats Become Castaways, N.Y. TIMES, Apr. 1, 2009, at A1. 10_STRAHILEVITZ_FINAL.DOCX (DO NOT DELETE) 2/1/2010 6:34 PM 358 University of Pennsylvania Law Review [Vol. 158: 355 braska, and North Dakota, local governments have made free land available to anyone willing to build a house on it and move in.6 In ur- ban centers, the problem of abandoned dwellings is significant, ac- counting for 23,000 dwelling units in New York City in 1996 and 1.3% of all urban residential housing units in fifty-eight cities in the nor- theastern United States in 1975.7 Given the ubiquity of abandoned property and its presumptive economic importance, one would expect there to be a large legal li- terature exploring the contours of abandonment law. Such a supposi- tion turns out to be unduly optimistic. There is very little legal writing on the abandonment of property. When legal scholars tackle the is- sue, they tend to focus on specific issues, like abandoned shipwreck cases, abandoned oil and gas interests, or abandoned rail lines.8 The leading property casebooks either ignore abandonment entirely or give it brief attention.9 For whatever reason, legal scholars have nearly 6 See, e.g., Laura Bauer, Trying to Halt the Population Slide: Towns Tout Free Land to Lure New Residents, KAN. CITY STAR, Jan. 29, 2007, at A1, available at 2007 WLNR 1679726 (detailing the free-land program in Kansas); Kansas Free Land, http:// www.kansasfreeland.com (last visited Nov. 15, 2009). 7 Benjamin P. Scafidi et al., An Economic Analysis of Housing
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